US Policy Clouds Approvals of Medical Marijuana

Doctors at Massachusetts community health centers have been advised not to authorize any of their more than 638,000 patients to obtain marijuana for medical purposes because the centers fear they would lose their federal funding.

The Massachusetts League of Community Health Centers has advised its 36 federally funded facilities to hold off on issuing patient marijuana certifications under the state’s new medical marijuana law, because use remains illegal under federal law.

Health center physicians who believe marijuana might be beneficial for certain patients and authorize its use could be committing a “potential violation of federal law and could result in legal and financial exposure for community health centers,” according to a statement from the League.

This disconnect between state and federal marijuana law is cropping up in other areas as well; some rules restrict tenants who use medical marijuana from living in federally subsidized housing, or prevent Veterans Administration hospitals and clinics from authorizing medical marijuana.

Voters approved a ballot initiative in November, making Massachusetts one of 20 states, and the District of Columbia, that allow medical marijuana use. Community health centers in other states also have advised doctors against authorizing patients to use marijuana.

It is not just federal funding at stake if the centers certify patients for marijuana use, but also loss of malpractice insurance, covered by a federal program known as the Federal Tort Claims Act.

Also, should a community health center physician be convicted under federal law for certifying a patient, the physician could be shut out of the Medicare and Medicaid programs, the insurance that covers many who use health centers.

The National Association of Community Health Centers is unaware of any center or center physician that have faced federal sanctions for prescribing medical marijuana, but the threat of prosecution or funding loss looms large.

“Community health centers have been providing access to care for decades, but there is no assurance that they would not come under federal investigation or that their physicians would not face trouble for certifying medical conditions under state medical marijuana programs, given it is an unsettled area of the law,” said Kathryn Watson, an attorney at Feldesman Tucker Leifer Fidell, a Washington-based law firm that advises the national group.

With health insurance unlikely to cover medical marijuana treatments, state regulators tried to ensure that lower-income people would be able to afford medical marijuana. State-licensed cannabis dispensaries must offer discounted or free marijuana to patients with documented financial hardship, but the community health centers’ stance could undermine that goal.

Among these patients is Gary, a 61-year-old disabled former church outreach worker who received a certification for medical marijuana use this year from his primary care physician at the Joseph M. Smith Community Health Center in Allston. A few puffs before meals helps pique his appetite, which, along with his weight, has shriveled because of hepatitis C, a disease that attacks the liver.

Gary asked that his last name not be used for fear of losing his publicly subsidized apartment, where medical marijuana use is prohibited.

In July, Gary received notice from the health center that his marijuana certification was being rescinded because the center was worried about losing federal funding, which accounts for about 10 percent of the facility’s funding.

“I am in a Catch-22 position,” Gary said. “I have a [doctor’s certification] that may or may not be valid.”

He has been buying marijuana on the street, bargaining prices between $200 and $300 for an ounce, and eagerly awaiting the opening of dispensaries,where he could get reduced-cost or free marijuana, as well as edible or vapor options, which would be gentler on his scarred lungs.

Paola Ferrer, grants and development director at the Allston health center, said the organization cannot risk its federal funding and care for 12,000 patients by writing certifications for a small number.

“We are really tied to the federal government and the funding stream, and until the legal issues are adequately resolved, we are not at liberty to do this,” Ferrer said.

Regulations issued by the Massachusetts health department in May require people who want to legally buy medical marijuana to receive a physician’s written certification that they have a “debilitating medical condition” that would benefit from marijuana use.

Like patients treated at community health centers, those who receive care at Veterans Affairs facilities face challenges obtaining certification. In a 2011 memo, the Department of Veterans Affairs reminded its physicians that it prohibits them from “completing forms seeking recommendations or opinions regarding a veteran’s participation in a state marijuana program.”

The memo, however, said department policy does not prohibit veterans who legally participate in a state marijuana program from also receiving other treatment at VA centers.

More confusing is a 2011 memo from the US Department of Housing and Urban Development to public housing authorities. It directs them to establish standards and leases that prohibit new tenants, and those with new subsidized housing vouchers, from using “state-legalized medical marijuana,” but gives authorities discretion to allow medical marijuana use by current residents and “to determine continued occupancy policies that are most appropriate for their local communities.”

An August memo from the US Department of Justice to federal prosecutors has also left many lawyers and health administrators unsettled.

The department attempted to clarify its policy by listing eight priorities, such as preventing marijuana sales to minors. The priorities do not specifically mention selling, growing, or authorizing patients to get marijuana for medical use.

The department is “committed to using its limited investigative and prosecutorial resources to address the most significant threats in the most effective, consistent, and rational way,” the memo states.

It concludes by noting the department still has authority to enforce federal laws “including federal laws relating to marijuana, regardless of state law.”